A Supremely Bad Decision: The Majority Ruling in Bush v. Gore

Jared Thompson '05

Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. -Justice John Paul Stevens [Dissent] Bush v. Gore (2000)

The Supreme Court decision that decided the 2000 Presidential Election should go down in history as one of the court's most ill-conceived judgments. In issuing its poorly-reasoned ruling in Bush v. Gore, the court majority unnecessarily exposed itself to charges of partisanship and risked undermining the court's stature as an independent, impartial arbiter of the law. Although the court majority correctly identified constitutional problems in the specific recount proceedings ordered by the Florida Supreme Court, the decision to end all recount attempts did immeasurable damage to the equal protection rights the court claimed to be guarding, since it favored a convenient and timely tabulation of ballots over an accurate recording of the vote. In the controversy that followed this decision, some critics of the majority decision argued that the court had no business taking on Bush v. Gore in the first place, that it should have remained solely within the Florida courts (Ginsburg, J. [Dissent] Bush v. Gore [2000]). This paper will argue that the court was correct to intervene but that the resulting decision was flawed and inconsistent, with potentially serious, adverse implications for the Federal judiciary if the court continues to issue rulings in this way.

The Court majority intervened in Bush v. Gore because it perceived a violation of the Fourteenth Amendment's equal protection clause in the manual recounts that had been ordered in Florida (Bush v. Gore [2000]). There is no disagreement that Art. II, § 1, cl. 2† of the Federal Constitution clearly specifies that it is the sole right and responsibility of the state legislatures to provide for the selection of Presidential electors. Under Florida law, this had been accomplished by providing for a popular vote, the winner of which was to receive all of the state's electoral votes. Since this right had been extended to the people of Florida, the equal protection clause mandates that the right to vote not be infringed either by preventing the act of voting or by unequal treatment of votes after they have been cast (Bush v. Gore [2000]). In the case of the Florida recount, the Court majority found that this right was being violated due to the lack of standards for how to assess voter intent on a ballot. Moreover, the court found that it would not be possible to conduct a constitutionally-acceptable recount before the so-called "safe harbor" afforded by 3 U.S.C. § 5 expired and that therefore the recount could not proceed (see below).

Concern about equal protection is certainly appropriate and instructive in the Bush v. Gore case, since it is directly linked to the legitimacy of the declared winner and eventual President. However, the court had several options to solve the equal protection problems and the decision that was finally rendered was not nearly the best possible option. The simplest way to solve the issue would have been to rule that legal votes are defined as those that were marked correctly and counted mechanically. This is the definition that Florida Secretary of State Katherine Harris suggested to the court. Unfortunately, this definition is not supported by Florida electoral law and instead the court majority accepted the Florida Supreme Court's definition of a legal vote being one that clearly shows the intention of the voter (Souter, J. [Dissent] Bush v. Gore [2000]). Having accepted that a vote tabulation should seek out the intent of each voter, the court majority found that arbitrary and inconsistent state-wide standards for assessing voter intent constituted a violation of equal protection, making the Florida recount unconstitutional as it had been ordered.

This judgment is more contested but I believe it is also an accurate one. In Florida, the responsibility for determining voter intent is designated to county canvassing boards (Souter, J. [Dissent] Bush v. Gore [2000]). Similarly, the selection of balloting systems falls to the counties, which are free to choose among several options with varying accuracy (Stevens, J. [Dissent] Bush v. Gore [2000]). Assuming, then, that Florida election procedures that allow for differences in voter treatment between counties are constitutional to begin with, at a minimum counties must treat all of their voters uniformly for equal protection not to be infringed. As testimony about voting procedures revealed, this basic equality was not being upheld and so the Court was justified in intervening to stop the recount that was underway (Bush v. Gore [2000]). The Court's suggestion that state-wide tabulation standards are required in a court-ordered recount is more debatable since it begins to raise doubt about the constitutionality of the entire election, which was conducted without any such state-wide assurances of equal protection. However, in the case at hand, the crucial point is simply that although the recount was unconstitutional as ordered by the Florida court, it is entirely possible to conceive of a recount that would be constitutional. At a minimum, it would require county-wide standards for assessing voter intent, with impartial judges working under clear instructions to make the final decision on any contested ballots and, if the court felt it necessary, it could order state-wide standards as well.

In its decision, the court majority did not deny that such a legal recount was possible. However, it found that circumstances would not permit such a recount before the expiration of the "safe harbor" afforded by 3 U.S.C. § 5. This clause essentially guarantees that the electors selected in the general election to represent a state will be counted in the Electoral College so long as they are selected under legislation that predates the election and are chosen at least six days before the Electoral College convenes (Rehnquist, J. [concurrence] Bush v. Gore [2000]). Since Florida law is designed to take advantage of 3 U.S.C. § 5, the court majority ruled that the selection of electors could not extend past that safe harbor time without ignoring the Florida statutes, which in turn would violate Art. II, § 1, cl. 2 of the Federal constitution. By invoking this restricted time frame, the court majority made it infeasible to conduct a constitutional recount and concluded that it was appropriate to order the cessation of all recounts in Florida.

It is this focus on abiding by the safe harbor clause that leads the court majority astray. Several of the dissenting Justices argue persuasively that in this case, the safe harbor clause can be safely ignored without causing any harm. They note, for example, that the Hawaiian slate of electors counted in the 1960 election was not certified until January 4, 1961 but was still counted by Congress (Stevens, J. [Dissent] Bush v. Gore [2000]). This effectively refutes the argument that missing the safe harbor deadline would risk the disenfranchisement of millions of Florida voters who cast mechanically-recordable ballots. What is not raised explicitly in any of the dissents is that under the circumstances, Florida law requiring that electors be selected under the safe harbor protections of 3 U.S.C. § 5 is itself an unconstitutional violation of the equal protection clause. If, as the court has defined, the undervotes and overvotes (ballots initially disqualified for having no vote for president or more than one vote for president) in Florida represent potential legal votes, it is a violation of equal protection for these votes not to be counted. In the majority's own words, "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another." (Bush v. Gore [2000])

Counting only those legal votes that happen to be easily tabulated by mechanical equipment to fulfill an unnecessary time limit for vote certification is the very definition of arbitrary and disparate treatment. Thus, the decision issued by the court majority, while claiming to protect the voting rights of Floridians, did the exact opposite, blatantly depriving tens of thousands of voters of their equal protection rights as defined by the court majority. The timing issue is far more relevant with respect to the January deadline for Congress's counting and certification of electoral votes, which cannot be safely ignored without disenfranchising millions of Floridians. At that point, certifying the best available Florida vote total, even if incomplete, becomes the lesser of two equal protection violations. However, by refusing to allow a legal recount to go on for as long as possible, the court majority supported the very abuses that the equal protection clause is designed to prevent, even as it claimed to be ruling in the spirit of equal protection.

It is worth noting that the court found itself in a very difficult situation as it tried to reach a decision in Bush v. Gore. Regardless of the outcome, half the voting public was likely to come out feeling that their candidate had been robbed. Nonetheless, it is not the role of the Judiciary to shy away from controversial rulings when they become necessary and so the court was right to take the actions it felt were needed. However, when the court takes on controversial cases, it must do a better job of ensuring internal consistency within its own rulings. Disagreement over judicial interpretations of the law is to be expected, especially in a complicated case like Bush v. Gore. The problem arises when court decisions contain such manipulated interpretations of the law that they are not even internally consistent, as this decision is not.

By issuing such a ruling in this case, the court exposed itself to charges of blatant partisanship since its decision can be seen as a thinly-veiled maneuver by the conservative majority to hand the election to the more conservative candidate. Whether or not this is accurate, there is an inescapable irony in the juxtaposition of a conservative majority decision that advocates intervention in state election proceedings while the dissents by liberal justices argue that the court has exceeded its jurisdiction and infringed on state's rights. If the court is to maintain its legitimacy in the eyes of the public, it must do a better job of making clear that it is an independent and non-partisan arbiter of the law. The status of the court will survive the Bush v. Gore ruling intact as it has after prior controversial rulings. However, if the court continues to intervene regularly in partisan political proceedings and to use such questionable logic in its decisions, it will risk losing its legitimacy, thereby undermining its own power and relevance, and casting doubt on the role of the entire legal system that the Supreme Court represents.

About writing, Jared says: "In general, I try to strike a balance between planning a paper and letting the paper decide its own course. I often find that my best papers are those that start with a well-defined but somewhat contentious thesis and then proceed to let the various sources interact freely and debate one another. As a result, I sometimes end up with conclusions that I hadn't entirely expected, which forces me to go back and rewrite the beginning, but it usually makes for an interesting paper and leaves me feeling that I learned something novel from the process of producing the paper."